Procedures Committee, 12 Sep 2006

Meeting date: Tuesday, September 12, 2006

Official Report 191KB pdf

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Guidance on Committees

Agenda item 2 is guidance on committees. A document on the subject has been circulated to members. Elizabeth Watson, the document's main author, is here to answer any questions. The document has been approved by the Conveners Group. It has to be approved by us, but it is not a committee report as such, which means that we do not have to scrutinise it line by line. Obviously, however, members might want to ask questions about particular aspects.

I invite Elizabeth Watson to introduce her paper.

The guidance that is currently available on the website is substantially out of date and does not represent the way in which committees now work, nor does it include up-to-date references to standing orders and other practices. The document before the committee is an attempt to update the existing material. It is part of a suite of guidance documents that we have—there is guidance on public bills, guidance on private bills, guidance on motions and guidance on parliamentary questions.

The guidance is intended to represent how the standing orders are translated into action and it fills in some of the practices that are not detailed in standing orders. It is only guidance and it reflects the current practice. Of necessity, the document has to be flexible. One of the problems with the existing material is that, because it exists in hard copy as well as on the website, it is fossilised and, as procedures and practice change, it has not been possible to update the guidance. However, it is intended that we will publish the new document only on the website and that we will have an updating mechanism so that, as standing orders and practice change—for example, if there were more determinations by the Presiding Officer about the interpretation of certain standing orders—we will be able to update the guidance quickly; in that way, it will always be a useful source of reference.

The guidance is aimed primarily at members, their staff and the clerks, but it will also be available to a wider audience. It will flesh out the way in which the committees work, as that is not immediately obvious on reading standing orders.

Are there any questions?

I have a comment. I certainly will not be able to sign off the guidance today, because I want to go through it line by line. I am concerned about the fact that guidance in the Parliament is taking on a role that it should not have. It is being interpreted as rules. Clearly, the guidance is ambiguous. Last week, the position of one clerk in the Parliament on the rules on substitution differed from the position of another clerk.

If we put down on paper something that is no more than a convention or a working practice, I am concerned that it can take on the status of something more than that. I would prefer to spend some time between now and the next meeting going through the guidance to ensure that we are not setting in tablets of stone something that has no right to be set in tablets of stone.

Whatever Elizabeth Watson says, the guidance will be viewed in that way, regardless of the form in which it is produced. I have already been told by another member of the parliamentary staff that something that is in the guidance is a rule, which clearly it is not. However, that could have prohibited me from doing something in the Parliament. Some confusion is being created about the status of guidance in relation to the status of the standing orders.

You have every right to go through the document privately line by line and to come back with questions and views at our next meeting.

A point that was made last week was that the guidance merely quotes the standing orders word for word and that, with all due respect, decisions that were made in other committees as a result of that were, quite clearly, wrong. We are endeavouring to sort that out and have written to all the relevant players, who have been invited to reply by tomorrow. I hope that we will have a definite proposal for changing the wording of rule 12.2A at next week's meeting.

Like Karen Gillon, I would like another week in which to consider the paper. However, I want to ask now about the status of the guidance. If a member wants to do something differently from what is in the guidance, what happens?

Practice in committees has always evolved, and there have been changes over the years. Provided that something is competent within the standing orders and the committee agrees to it, the guidance can evolve to reflect that.

One example is the increasing use in committees of round-table sessions rather than formal evidence-taking sessions. Nothing in the standing orders prevents committees from having round-table sessions. They find them a useful way of taking evidence, and the practice is increasing. When the guidance was first issued, it did not refer to those round-table sessions because they did not exist as a practice. They now exist and appear in the updated version of the guidance as a way in which committees obtain information.

If I tried to do something and was told that it was against the guidance, what would happen next?

The real question is whether it is against standing orders. If it is possible within the standing orders, that must be what rules.

So the guidance is simply guidance and by no means a limit. If anyone says, "That is not in the guidance," we can say that that is tough and we can still do it.

As long as the action is within the standing orders and the remit of your committee, it is competent.

I want to add briefly to what Elizabeth Watson has said. One or two things that are referred to in the guidance are more mandatory in character but are not reflected directly from the rules. That would include, for example, a ruling by the Presiding Officer on the interpretation of standing orders, or where there is a power in standing orders for someone to make a determination. Whatever the determination happens to be, it has a more mandatory character and that would be reflected in the guidance.

Guidance brings together all the various rules that exist—some of which are standing orders, while others are the sorts that I have just described—together with descriptions of practice, as Elizabeth Watson explained.

Is it clear in the guidance what is a determination and what is not?

When a determination has been made, that is referred to in the guidance.

Would it not be simpler if we made the standing orders that are agreed by the Parliament for the smooth running of committees available to everybody in the same way as they are available to committee clerks and the convener? If we produced them and included updates, there would be no room for conveners or clerks to give different advice. The standing orders already exist and are clear.

To me, the guidance document is unnecessary and leaves open the possibility of an interpretation that is not in accordance with the standing orders. It would be difficult for a member to challenge a convener if they were going by something that was included in the guidance.

The standing orders are available on the website and in hard copy. The bulk of the guidance document is a description of practice in committees. For example, it describes how the committees normally set their work programmes, conduct inquiries and invite witnesses. It contains a lot of material that is not included in the standing orders. It fleshes out the standing orders with the practice of the committees.

This is about opinions and how things are working, rather than questioning the specific document. Surely our committees have a remit. They are unique in their make-up. We should not follow practice just for the sake of it.

Elizabeth Watson made a point about standing orders not preventing committees from holding round-table discussions. The fashion for those discussions was probably left behind a few months ago. At one time, it seemed that every committee was having a round-table discussion because some other committee had taken evidence in that way. I have been on committees that have held those sessions, and I do not know whether the evidence was as good as or better than normal.

The Parliament does not want to set its procedures in stone. We are only seven years old and we want to evolve. By putting things down in black and white, we would be sending out the message to committees, "This is what is expected of you," rather than allowing the committees to form their own way of doing things.

I robustly defend the existence of the draft guidance. Although I have reservations, I take that view because if the document did not exist it would not stop custom and practice evolving around the administration of the standing orders. It would be to our tremendous disadvantage if that custom and practice existed in the ether somewhere and was not defined in black and white. That would make the standing orders open to almost infinite interpretation; I know that some politicians would love to have the opportunity to do that. It is important that the guidance document exists and is open to scrutiny.

The key issue is the status of the document. Some members may have attributed an inappropriate status to the document and consequently confused it with the standing orders. The committee should concern itself with that confusion and how it can be prevented.

Given the significant status of the document, Karen Gillon has a good point; considering the document in greater detail before we comment on it would probably be worth while. However, I strongly defend the existence of the document.

Some members wish to go through the document in more detail, which they are at liberty to do. The document explains that it is just guidance and that standing orders are standing orders. Until recently, I was not aware of the existence of the document; most members are unaware of it. It is there for the guidance of committee clerks, not for rules. If somebody is appointed as a committee clerk and wonders, "What the hell do I do next?", the document gives them a start.

The issue is the confusion between custom and practice and rules. Custom and practice is being interpreted as rules by many in this building. It is for members to determine how the committees of the Parliament operate within the standing orders. I am concerned that guidance is being interpreted as rules, not just within committees but outwith them.

We need to be clear about the status of such a document and how it might be interpreted by a member of the public who is reading it. The document says:

"This is largely a formality since, if there is more than one eligible member, they will normally have decided beforehand who is to stand."

Why would we include that in a public document of the Parliament? It is for a committee to decide who its convener is. Putting something like that in the guidance is not helpful. You, as clerks, may believe that that is what should be there, but the rules of the Parliament say that the committee will elect the convener, and not that a wee back-door deal will be done beforehand. You may believe that that is what happens, but the rules of the Parliament say that the Parliament will elect that convener and that the committee has the power to remove the convener. Why would something like the statement that I quoted be included in a document that has official status within the Parliament? That is not what the rules of the Parliament say.

Because that is what happens.

But it is not right.

Exactly. We are giving the practice a status that it does not have.

We should give the matter further consideration. Elizabeth Watson will attend next week's meeting to guide members through the issue and to answer questions, so that we can make a definite decision on what to do about the document.